Paul and the Private Parts

Paul and the Private PartsBigots are not the only ones hurt by bans on discrimination.Jacob Sullum | May 26, 2010

Last week James Clyburn, a former civil rights activist who is now a Democratic congressman from South Carolina, warned that if Rand Paul is elected to represent Kentucky in the Senate, "it will be the first step…to turning back the gains that we started making way back in the 1860s." The comment, provoked by the Republican candidate's criticism of the federal ban on racial discrimination in places of "public accommodation," was not just hyperbolic but radically misguided, because Paul's position is based on the same principle that led to the abolition of slavery and the long struggle for equality that followed it: the principle of self-ownership.

If we own ourselves, it follows that no one else can own us—the most obvious way in which slavery violates human rights. It also follows that we own our labor, which means we decide who benefits from it and under what terms, and the fruits of our labor, which means we control access to our property. All these rights were flagrantly violated not only by slavery but by the racist Jim Crow regime that succeeded it, which forced businesses to discriminate against blacks as customers and employees.

The Civil Rights Act of 1964 aimed to eliminate state-imposed segregation and all other forms of official discrimination against blacks. While wholeheartedly supporting that goal, which belatedly implemented the 14th Amendment's guarantee of equal treatment under the law, Paul expressed qualms about the provisions banning private discrimination, which impinged on the same liberties—freedom of contract, freedom of association, and property rights—that were routinely disregarded under Jim Crow.

Paul noted that liberty would not mean much if it did not include the ability to say and do "abhorrent things." Just as freedom of speech and freedom of association benefit the Ku Klux Klan along with the NAACP, the right to control one's property and to choose one's customers benefits the bigot along with former slaves and their descendants.

Paul's more sophisticated critics argued not that he was racist but that he was unrealistic. Given the social environment created by centuries of government-backed slavery and oppression, they said, segregation in the South would not have been eliminated simply by withdrawing state support for it. Even if every racist law and government policy were abolished, racist business practices would have lingered as long as there was a demand for them or as long as owners were willing to pay an economic price for their own bigotry.

But before concluding that new infringements on liberty were necessary to remove the stain left by past infringements, consider some unforeseen consequences of the federal ban on private discrimination. The precedent has encouraged an assault on freedom of association, as illustrated by demands that private organizations such as the Boy Scouts, Christian student groups, and online dating services adopt gay-friendly policies.

The blurring of the distinction between public and private property has invited a wide array of meddlesome regulations, ranging from bans on smoking in bars and restaurants to unfunded mandates requiring expensive renovations to accommodate customers in wheelchairs. As Paul noted, the "public accommodation" rationale even has been cited as a pretext for forcing business owners to allow guns on their property.

In upholding the ban on discrimination by places of public accommodation, the Supreme Court loosened constitutional restraints on federal authority, extending it to cover businesses with tangential connections to interstate commerce, such as a motel that serves travelers or an Illinois restaurant that uses Idaho potatoes. This absurd stretching of the Commerce Clause, usually applauded by progressives, has led to results even they do not like, such as federal restrictions on abortion and attempts to override state policies regarding medical marijuana and assisted suicide.

A broad license to interfere with property rights and freedom of contract inevitably deprives people of choices they value. Rand Paul deserves credit for pointing out that we cannot abridge the freedom of those we despise without endangering our own freedom.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.